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Polygamy case back in B.C. court; judge reserves decision

Author of the article:

Daphne Bramham

Publishing date:

November 17, 2009 • 2 minute read

Article content

Exactly how the B.C. Supreme Court deals with the unprecedented reference case on the constitutionality of Canada’s anti-polygamy law won’t be known until Dec. 4. It’s the first time in British Columbia — and in Canada — that a constitutional reference question been put before a trial court. Normally, reference cases are made at the appellate court level. The difference between the two courts is that in the B.C. Supreme Court, evidence could be presented and witnesses called. Chief Justice Robert Bauman, who has chosen to hear the case himself, heard submissions Tuesday on how lawyers for B.C. and Canada would like it to proceed before hearing counter arguments from lawyers for Winston Blackmore and James Oler. Blackmore and Oler are both fundamentalist Mormon leaders from Bountiful. Blackmore is a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, while Oler is the FLDS bishop whose spiritual head is Warren Jeffs, the jailed FLDS prophet. Since both governments believe the anti-polygamy law is valid and not overridden by the constitutional guarantee of religious freedom, their lawyers have asked Bauman to appoint well-known Vancouver lawyer George Macintosh as an amicus to argue that the anti-polygamy law is unconstitutional. Craig Jones from the B.C. attorney general’s office, said appointing an independent counsel (who would be paid by the government) would ensure that the issue would be broadly examined and would not focus solely on polygamy within the context of fundamentalist Mormonism. Jones noted that there are others practicing polygamy in Canada — Muslims, Christians, atheists, polyamorists and even gays and lesbians. He said they could represent themselves as intervenors. If they chose not to intervene, Macintosh would make arguments on their behalf. But lawyers for Blackmore and Oler argued that they — not an amicus — should be arguing the case and be fully paid by the government for their work. Unlike someone like Macintosh who has no direct connection to polygamy, Blackmore’s and Oler’s lawyers argued that they would provide the most vigorous challenge because they have real clients with a real and substantial stake in the outcome. Blackmore’s lawyer Joe Arvay told Bauman that people in Bountiful are also unlikely to trust “an outsider appointed by the government.” An amicus would not likely be invited into the community as both he and Oler’s lawyer Robert Wickett have been. Further, Arvay said it’s too early to appoint an amicus. He suggested that Bauman wait to see which individuals and groups apply to be intervenors. Then, only if a particular group is not represented should Bauman consider appointing Macintosh.Dbramham@vancouversun.com

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